The Emporia weekly news. [volume] (Emporia, Kan.) 1881-1889, 1887-03-10

Il
were cast.
The voters who cast the ballots testi-
| fed as to who they intended to vote for
| under the name on the ballot. They
voted what they supposed to be the
straight ticket of their party and re-
lied upon the superstition that the
names thereon were the correct names
or their party candidates. Upon this
evidence it was held that there was no
question to submit to the jury, the
Court ordering verdict. This decis-
ion was affirmed in 9Th New York 81.
The record of the case now under
consideration discloses facts materially
different from those in the above case.
In the first place the constituency of
Jacob Jacobs, jr., did not extend over
territory like the State of New York
but was limited to a mere Commits
sioner District in County, the neigh
DorhOod where he and his father had
resided for more than fifteen years.
Again, it Is not shown that in the pre-
cinct where the disputed ballots were
cast, the father of the confession was
unknown, nor is it reasonably possible
to infer this fact from the evidence.
On the contrary the inference is impera-
tive that he was we'll and widely known
and judging the sire by the son he must
SAaNO OOCA ACopCClCu
nently fitted for the Office of County
Commissioner. And further, it does
not appear where the disputed ballots
were cast. So far as the evidence dis
close they may have all been cast at the
voting precinct where the father of the
confession resided, and where the voters
were personally familiar with the i'm
pOTtance of the letters ''Jr.'' as dis
tinguishing the father from the son.
1t would not be very remarkable cir
cumstance if some of the personal
dissatisfied with their own party
candidate and who did not wish to
directly support the opposition,
should show their appreciation of the
old gentleman by giving him their
votes. Assuming such to be the case,
how could they have made such intent
manifest except by writing OH their
ballots his name, Jacob Jacobs. One
man thought enough of Hugh Williams
to vote for him and he was not candi-
date, why not other men vote for Jacob
Jacobs. 1t would be unreasonable to
assume that they would be ignorant of
the Importance of the addition of Jr..
for in addition to his general personal
acquaintance and persistent canvass,
every ballot at the polls bearing the
printed name of the confession had this
addition thereto.
Men do, constantly, vote for those
who are not candidates, at almost every
election the returns show more or less
votes of this character. This is not
the case Of two men of the same name
and one only a candidate. They are
two men who have and are well known
by different names. Under the facts
presented it is impossible to say beyond
"a reasonable doubt or indeed with any
reasonable certainty who the voters in
tended to vote for by the name of Jacob
Jacobs, and for the want of this GER
tainty they cannot be counted for the
confession.
1t is contended by the contestee that
the contest court erred in deciding that
he was ineligible to take the office. Up
on this branch of the case the facts are
substantially as follows: On and previ-
GUS to the date of election the contestee
held the Office of Township Clerk. On
that day his successor was elected and
subsequently qualified and entered up
on the duties of said office. When the
contest Court heard the case the con-
testee was not the holder of any Office
whatever. 1t is coutended that he was
ineligible by reason of Section II, Chap
ter %, General Statute, which is as
follows:
mo person holding any State, County,
Township or City Office, OF an employer,
officer or stakeholder in any Railroad
in which the County owns stock shall
be eligible to the office of County Com
missioner"
The disabilities mentioned in this
section are such as may be voluntarily
removed at any time. They do not in
here in the character or affect the per-
sonal qualifications of the candidate in
the least, There is no good reason why
a person who, by resignation or other
wise, becomes free from the ineligible
conditions mentioned in said section
ten days after his election to an Office,
is a less proper person to fill such Office
than if such conditions had been re-
moved one day before said election.
The distinction between an ineligibility,
which prevents the people from elect
ing candidate to office, and one which
prevents person from taking an Of
flee after being elected thereto, is a
marked and important one, and one
Privit VS., Bickford, SO Kansas 50, and
cases there cited.
The language of section u, above
quoted, does not clearly indicate wheth-
er it was intended to apply to the cleo
tion or to the taking of the Office, but
construed in the light of the case last
above cited and in view of the unmiS-
anu pun DOSC VI lllO SlttJ-
ute, it must he held to relate to the TAX
ing of the Office and not to the election.
Evidently the sole purpose of said
section was to prevent a person from
exercising the office of County Commits
sioner while occupying any OF the Off
ces mentioned in said section.
The people, when they voted for and
elected the contestee, had the right to
consider that his successor to the office
of Township Clerk would be elected at
the same election. and to act upon
came for the contestee to enter upon
the duties of County Commissioner nc
ineligibility would exist.
The right of citizen to hold Office
and the right of the people to have such
of their numbers in Office as they choose
to designate by their votes are of too
much Importance to be unnecessarily
sacrificed by construction.
When IL becomes necessary to con-
strue any statute which involves i'm
portant rights, the construction should
be such as will preserve and extend
such rights rather than abridge them,
when such construction is in harmony
with the manifest intent of the statute
being construed and does not weaken OF
impair the remedy it was designed tC
give. The Legislature ought not to be
charged WIFI in Intent 10 dDIltlS6 I'LL
portant rights of the citizen beyond the
clear import of the language used anC
the spirit and intent of the statute en-
| acted.
! 1t is further contended that what
ever may be the proper construction t,
place upon section u, that said section
when construed, with the second sub
division of section s. chapter SO, tn,
two together make the contestee ineli
gible as decided by. the contest Court
So much of said section s. as is ma
terial to this inquiry reads as follows
The election of any person declares
duly elected to any County Office ma
I've contested by any elector of tn
County, first, -; second, when tn
contestee was not eligible to the oi
, flee ut the time of the election; third
-
The language here used is the sam
as that in section II. and if used in
law defining what should constitute "A
ineligibiiity, would he subject Ia til
I same construction, but this and ever
other law must be construed with re
2 erence TO its object and purpose. TIL